In 1977, the U.S. Supreme Court decided Bates v. State Bar of Arizona, and granted lawyers the right to advertise, subject to the states’ rights to prevent “false, deceptive, or misleading” advertising by lawyers; to regulate the manner in which lawyers may solicit business in person; to require warnings and disclaimers on lawyer advertising in order to assure that the public is not misled; and impose other reasonable restrictions on the time, place, and manner of lawyer advertising.
Thirteen years later, in Peel v. Attorney Registration and Disciplinary Comm’n, the Court held that, while states can regulate attorney advertising (in this case designation as a “specialist”), the state cannot categorically ban such advertising. Many states adopted rules to allow use of the specialist designation if the certifying body was approved by the state. The CLLA and the ABI both set up certification programs. The League certified Business Bankruptcy lawyers and Creditors’ Rights lawyers. The ABI certified Business Bankruptcy and Consumer Bankruptcy lawyers. In 1998, these programs merged to form the American Board of Certification (“ABC”).
While there have been more than 1000 certifications granted by the ABC alone, non-certified lawyers continue to advertise that they are specialists. These claims run afoul of the ethics rules in most states. Most states have the equivalent of Rule 7.4 of the Model Rules of Professional Conduct, which governs “Communication of Fields of Practice and Specialization. Lawyers can “concentrate” or “focus” or “limit” their practices to certain areas, but they cannot “specialize” except in accordance with the rules.
As an example, Pennsylvania’s adoption of Rule 7.4(a) is:
A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. A lawyer shall not state that the lawyer is a specialist except as follows:
- a lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation “patent attorney” or a substantially similar designation;
- a lawyer engaged in admiralty practice may use the designation “admiralty,” “proctor in admiralty” or a substantially similar designation;
- a lawyer who has been certified by an organization approved by the Supreme Court of Pennsylvania as a certifying organization in accordance with paragraph (b) may advertise the certification during such time as the certification of the lawyer and the approval of the organization are both in effect;
- a lawyer may communicate that the lawyer is certified in a field of practice only when that communication is not false or misleading and that certification is granted by the Supreme Court of Pennsylvania
States have been very protective of their rights to control who says they are a specialist and when. Some states have limited rules and may have no specialties approved for advertising. Some have rules that require specialists to state that they are not certified by the state.
The lesson for us is that we have to make sure that we understand the rules of our states. Also, we have to be very careful in our use of language describing our practices. Finally, we have to make sure that our employees and marketing vendors understand the rules so they don’t use the layman colloquialism of “specializing” when they mean “concentrating.”
Please comment or suggest issues and topics: firstname.lastname@example.org. See you next time.
Robert S. Bernstein, of Pennsylvania, is currently President-Elect of the CLLA, is also a Past President of the CLLA, Past Chair of the American Board of Certification and regularly tries to pay attention to issues of ethics and professionalism in the worlds of credit, collections and bankruptcy, while practicing law at Bernstein-Burkley, P.C.
*This article previously appeared in Commercial Law World, the official publication of the Commercial Law League of America.